FACC No. 5 of 2008

IpsofactoJ.com: International Cases [2009] Part 9 Case 8 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Hong Kong SAR

- vs -

Tin's Label Factory Ltd

CHIEF JUSTICE ANDREW LI

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE R.A.V. RIBEIRO PJ

LORD WOOLF NPJ

5 DECEMBER 2008


Judgment

Chief Justice Li

  1. This is the judgment of the Court.

  2. Any person convicted of an offence by a magistrate has a right of appeal to a judge of the Court of First Instance (“the CFI”). The judge’s decision may be appealed to this Court with its leave where a point of law of great and general importance is involved or on the ground of substantial and grave injustice. The CFI thus occupies the position of an intermediate court of appeal for such an appeal.

  3. On a magisterial appeal, it is not uncommon for a judge to deliver an oral decision with reasons to be handed down later. The essential question arising in this appeal is, where a judge has adopted this course, what in law is the point of time when he ceases to have the power to alter his decision. After the relevant cut-off point, the judge would cease to have the power. In traditional language, he would be functus officio (having discharged his duty). The present case is only concerned with the position of the CFI as an intermediate court of appeal for magisterial appeals.

    THE CHRONOLOGY

  4. On 11 June 2007, Tin’s Label Factory Limited, the respondent, (“the Company”) was convicted by a Magistrate of the offence of being the proprietor of an industrial undertaking, failing to provide and maintain a silk screen printing machine that was, so far as was reasonably practicable, safe and without risks to the health of the person employed by the Company at the industrial undertaking contrary to various sections of the Factories and Industrial Undertakings Ordinance, Cap 59. An employee of the Company had been injured when operating the machine in question. The Magistrate imposed a fine of $25,000.

  5. The Company appealed against both conviction and sentence to the CFI. In its perfected grounds of appeal, the Company relied on a number of grounds. For present purposes, it is sufficient to note that they included the following two grounds. First, the Magistrate had unfairly descended into the arena by asking Mr Tin, the Company’s representative, a series of questions after he had been cross-examined by the prosecution. Secondly, the Magistrate had wrongly relied on the evidence given by Mr Tin as to what the supplier of the machine in question had told him after the accident concerning the functioning of the machine.

  6. Prior to the hearing of the appeal, both parties had filed written submissions. On 28 September 2007, the Judge (Pang J) heard the appeal. At the conclusion of the argument, the Judge allowed the appeal with reasons to be handed down later (“the oral decision”). He quashed the conviction, set aside the fine and awarded costs of the trial and the appeal to the Company. On the same day, the Judge’s clerk endorsed on the back of the form of conviction a memorandum of the oral decision in these terms :

    Judgment

    Appeal against conviction allowed.

    Conviction quashed and sentence set aside.

    Costs for trial & appeal be to the [Company].

  7. Just over seven and a half months later, in the morning of 15 May 2008, the Judge handed down a written judgment (“the 1st written judgment”). It recorded the date of hearing and the date of judgment as 28 September 2007 and the date of “handing down judgment” as 15 May 2008. Paragraph 1 stated that “the following are my reasons for dismissing the appeal of the [Company].” In this document, the Judge dealt with and dismissed all grounds of appeal.

  8. The Company’s counsel immediately wrote to the Judge’s clerk reminding that the Judge had earlier by his oral decision allowed the appeal and that the 1st written judgment dismissing the appeal was inconsistent with it.

  9. At a hearing at 3 pm on the same day, the Judge said that the 1st written judgment handed down that morning was “the incorrect version” and that he was now handing down “the correct version”. He asked the parties to return their copies of the 1st written judgment. The Judge then handed down a judgment (“the 2nd written judgment”). This judgment again recorded the date of hearing and the date of judgment as 28 September 2007 and the date of “handing down judgment” as 15 May 2008. But paragraph 1 stated that “the following are my reasons for allowing the appeal of [the Company]”. The contents of the 2nd written judgment are essentially the same as those of the 1st written judgment except for one paragraph (that is, para 21). In this paragraph, the Judge held that the Magistrate should not have relied on Mr Tin’s evidence of what the supplier had told him:

    as the supplier was not an expert witness and the knowledge of the supplier in the printing machines could not be established.

    This was given as the only reason for allowing the appeal.

  10. On the same day, the clerk to the Judge sent to the Kwun Tong Magistrates’ Courts, where the trial had been conducted, a memorandum which stated that the appeal was heard before the Judge on 28 September 2007 and that the Judge had ordered:

    Appeal against Conviction allowed. Conviction quashed and sentence set aside. Costs for trial and appeal be to the Appellant.

    It further stated that all papers sent for the purpose of the appeal were returned and that a copy of the written judgment handed down on 15 May 2008 was forwarded for retention.

  11. This memorandum was received the next day, on 16 May 2008, by the Kwun Tong Magistrates’ Courts. On 19 May 2008, the result of the appeal was entered into the Magistrates’ Courts’ computerized case management system.

    THE JUDGE'S DELAY AND MISTAKE

  12. On 28 September 2007, after a hearing lasting about one and a half hours, the Judge had immediately given his oral decision allowing the appeal, with reasons to be handed down later. However, this was not done until some seven and a half months later on 15 May 2008. It must be reiterated and strongly emphasised that judges at all levels of court have a duty to deliver judgments within a reasonable time after the conclusion of the hearing. Where an oral decision has been given of the result, with reasons to follow later, it is incumbent upon the judge to deliver the reasons within a reasonable time. This is important not only for the parties, but it is essential to the maintenance of public confidence in the administration of justice. In the present case, the delay of seven and a half months was unjustified.

  13. In handing down the 1st written judgment purporting to set out his reasons for “dismissing” the appeal on 15 May 2008, the Judge must have forgotten about his earlier oral decision allowing the appeal and omitted to check the file. The delay in preparing his reasons must have contributed to this oversight. Such a mistake should not have been made by the Judge.

  14. Such a mistake adversely affects public confidence in the administration of justice. Although the mistake was an unprecedented occurrence in our experience, it is our duty to state that a mistake of this kind must not be allowed to recur at any level of court.

    LEAVE TO APPEAL

  15. The Appeal Committee granted the prosecution leave to appeal on both the point of law limb and the substantial and grave injustice limb. The following questions were certified for consideration:

    Where a Judge of the Court of First Instance has given an oral decision on an appeal from a conviction by a magistrate what is the effect in law :

    (1)

    of a subsequent written judgment which is inconsistent with his oral decision; and

    (2)

    of a further written judgment which is in turn inconsistent with the first written judgment?

    THE PERFECTION RULE

  16. For a court of record, it is a well-established rule that until the point of time when its order is finally recorded, it has the power to recall and vary a decision it had earlier made. That moment marks the cut-off point after which the power to change an earlier decision ceases. The final entry of the order in the record is known as the perfection of the order and it will be convenient to refer to that rule as the perfection rule. Such a power is implicit in the court’s power to determine the matter in controversy. To identify the point of demarcation represented by the final recording of the order, it is necessary to examine the statutory provisions establishing the court and governing its operation and, where required, any relevant court practice.

  17. The CFI is established by statute as a superior court of record. Its criminal jurisdiction includes the appellate jurisdiction conferred on it by law. Section 12(1) and 12(3)(b) of the High Court Ordinance, Cap 4. Its appellate jurisdiction includes magisterial appeals as provided for in Part VII of the Magistrates Ordinance, Cap 227. Being a court of record, the perfection rule applies to the CFI, including in relation to its appellate criminal jurisdiction.

    THE AUTHORITIES

  18. A leading authority in England is R v Cross [1973] 1 QB 937. The Court of Appeal held that the perfection rule applies in a criminal appeal. Once the judgment was finally recorded, the power to vary it would be lost. By reference to the relevant court rule and court manual, it was held that the judgment would be finally recorded when the decision of the Court of Appeal was entered on the court record of the trial court on return of the case papers to it after appeal.

  19. Following the decision in Cross, the perfection rule has been consistently adopted and applied by the courts in Hong Kong in criminal appeals. The Court of Appeal has held in a number of decisions that it may reconsider a decision on appeal against conviction and sentence before the order has been finally recorded. See R v Au Pui Kuen (3 February 1977) CACC 1028/1976, R v Wong Tak Sing [1990] 1 HKC 155, R v Wong Siu Chung (7 June 1995) CACC 571/1994, Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498.

  20. The Court of Appeal has also applied the same approach in relation to the power of a District Judge to change his decision at a criminal trial. The Judge only had the power to do so before the conviction and sentence had been finally recorded. See HKSAR v Ho Tung Man [1997] 3 HKC 375, Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476, HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405, HKSAR v Agbayani (19 March 2008) CACC 114/2007.

  21. In relation to a magisterial appeal with which the present case is concerned, the perfection rule has been applied in two CFI decisions. In R v Lau Kwok Wah [1980] HKLR 24, McMullin JA sitting at first instance gave an oral decision dismissing the appeal against sentence. Two days later, he had misgivings about his decision and ordered the matter to be re-listed. In the meanwhile, he directed that the papers should not be submitted to the Registrar for his action under s. 119(1)(f) of the Magistrates Ordinance. In these circumstances, he held that since his original order had not been perfected, he could reconsider the matter and he reduced the sentence.

  22. Lau Kwok Wah was followed in HKSAR v Yeh Tsann Tarng (1 February 1999) HCMA 1005/1998. Madam Justice Beeson had dismissed the appeal against conviction and sentence. She held that she had power to reconsider the matter since none of the steps contemplated in s. 119(1)(f) of the Magistrates Ordinance had been taken. She altered her original decision and allowed the appeal against sentence in part by reducing it.

  23. There is thus a consistent line of authority in Hong Kong following Cross applying the perfection rule. However, in this connection, it is necessary to refer to two decisions in Hong Kong. In R v Chan Wai Keung [1965] HKLR 815, the Full Court dismissed the appeal against conviction for murder with reasons to be given. The Full Court then of its own motion invited further submissions. The Court held that having orally dismissed the appeal, it had no jurisdiction to alter that decision, although if there were jurisdiction, a majority of the Court would have allowed the appeal[1]. The Court rejected the argument that the order was not perfected until reasons were given (at 836). However, the judgment did not state that its order dismissing the appeal had already been perfected. It is unclear from the judgment whether that had been done. Indeed, there was no discussion of when an order of the Full Court dismissing an appeal against conviction should be regarded as perfected. This case, which was decided before the position in England was clarified in Cross, should not be regarded as authority against the perfection rule.

  24. In R v Man Lim Ping [1985] 1 HKC 61, the judge, after convicting and sentencing the defendant of the offence of possession of dangerous drugs for the purpose of unlawful trafficking on his own plea, ordered the return to him of a sum of money found at his flat. After rising, the judge had second thoughts. He tried to reconvene the court but counsel had left. On being informed of the judge’s reservations, the prosecution applied for forfeiture of the money. After hearing submissions, this was granted by the judge. On the defendant’s appeal, the Court of Appeal held that the judge had no jurisdiction to revise his earlier order for the return of the money. The Court noted that no formal order had been drawn up and observed that no formal order need be made (at 66B-C, 67C-D). No authorities were cited and the Court did not discuss the question of when the oral decision should be regarded as finally recorded. This case did not relate to a criminal appeal but was concerned with the position of a judge at first instance. Again, it should not be regarded as an authority against the perfection rule.

  25. Apart from England and Hong Kong, the perfection rule has been adopted by the High Court of Australia in various contexts. See DJL v The Central Authority (2000) 201 CLR 226 in relation to the Full Court of the Family Court, Elliott v R (2007) 239 ALR 651 and Burrell v R [2008] HCA 34, 82 ALJR 1221 both in relation to the Court of Criminal Appeal of New South Wales. The perfection rule has also been applied in New Zealand in relation to the Court of Appeal. R v Nakhla (No. 2) [1974] 1 NZLR 453.

    RATIONALE

  26. Under the perfection rule, the final recording of the order defines the point after which the court’s jurisdiction to alter the order ceases. The rule provides “a readily ascertainable and easily applied criterion” for the identification of the cut-off point. Burrell v R at para 20. For a court of record, the final entry of the order should obviously be regarded as an event of great significance. But the perfection rule should not be viewed as a technical rule focusing on form rather than substance. The rule is based on sound reasons of policy.

  27. In any legal system, the principle of finality is of high importance. The outcome of litigation should be final. The principle underlies various legal principles and rules, and is reflected in the perfection rule. The present case is concerned with an appeal to the CFI against conviction by a magistrate. Where a judge of the CFI has determined the appeal, the matter may be further appealed to this Court subject to its leave. But it would not be conducive to public confidence in the administration of justice if both the prosecution and the defence can re-open the matter endlessly before the judge. This would not be in the interests of the community. And it would occasion unfairness to the appellant who had been convicted at trial, with the stress, uncertainty and expense involved. There must be an end to the controversy as far as the appellate process at the CFI is concerned. The perfection rule is directed to achieving that purpose.

  28. Further, the appellate process to the CFI from a conviction by a magistrate envisages a single process where all matters in controversy are put in issue and resolved. The process does not contemplate an opportunity to have a second bite at the cherry. The perfection rule provides “the sharpest spur” to judges, lawyers and litigants to get things right the first time. Burrell v R at para 16.

    RE-OPENING

  29. Where under the perfection rule, the judge dealing with a magisterial appeal has the power to vary a decision before it has been finally recorded, three points should be made concerning the exercise of this jurisdiction in the context of such an appeal.

  30. First, where the question of alteration of a decision before its perfection arises for consideration either on the application of a party or on the judge’s own motion, all parties must be afforded an opportunity to be heard.

  31. Secondly, however, the occasions when the court is reconvened to consider the re-opening of a decision should be exceptional. The judge must be vigilant in not allowing an unsuccessful party to invoke this power in order to reargue his case. Where the judge has properly considered his original decision, it would rarely occur that he would need to re-open it on his own motion. In this connection, it should be stated that a judge should only adopt the course of announcing an oral decision, with reasons to be given later, if he is sure about the decision. If the judge is in any doubt about the matter, he should reserve his decision.

  32. Thirdly, in the exceptional case where the court is reconvened, the judge must exercise great caution in determining whether to alter his original decision. Where the judge is firmly satisfied that his previous decision was incorrect and that alteration is necessary to ensure that justice is done, alteration would be justified. In such cases, the delay, expense and uncertainty involved in a further appeal would be avoided.

  33. Where the proposed alteration is in favour of the appellant who is appealing against conviction and/or sentence, the judge should be more ready to exercise his power. For example, where the judge had dismissed his appeal against conviction and subsequently wished to allow his appeal. Similarly where the judge had dismissed his appeal against sentence but now wished to reduce the sentence. In both Lau Kwok Wah and Yeh Tsann Tarng, on a magisterial appeal, the judge exercised the power to alter a previous decision by reducing the sentence.

  34. In contrast, where the judge has allowed the appeal and quashed the conviction, the occasions when it would be proper for the judge to exercise his power to change his decision to one dismissing the appeal and upholding the conviction would be wholly exceptional and extremely rare. See Registrar, Court of Appeal v Craven [No. 2] (1995) 120 FLR 464 at 468-470 (Court of Appeal of New South Wales). Before deciding on the appropriate course, all circumstances would have to be given the most anxious and careful consideration, including the lapse of time and any prejudice to the appellant. The judge would also have to take into account the fact that the prosecution may, with leave, appeal to this Court which, if upheld, would result in the restoration of the conviction. Similarly, where the judge has allowed the appeal against sentence and then wishes to consider dismissing it and confirming the original sentence, the judge should proceed with great circumspection.

    THE SLIP RULE

  35. The courts in criminal cases have the power to amend a perfected order under the slip rule. R v Saville [1981] 1 QB 12. The CFI on a magisterial appeal has such a power. This power is distinct from its power to alter an order before its perfection and should not be regarded as an exception to the perfection rule. In amending an order under the slip rule, the court is not changing its order. What is being done is to ensure that the order accurately reflects what the court had originally intended when making it. See Burrell v R at para 21.

    WHEN ORDER PERFECTED

  36. The question of the time when an order made by a judge on a magisterial appeal should be regarded as perfected must now be addressed.

  37. The position regarding the keeping of a record of convictions and orders in the Magistrates’ Courts under the Magistrates Ordinance must first be examined. If a magistrate convicts a defendant or makes an order against him, he must make a minute or memorandum of his adjudication and must cause the same to be lodged with the magistrates’ clerk who must register it. Section 19(3). Under s. 35(1), the magistrates’ clerk is under a duty to keep a register of the minutes or memoranda of all convictions and orders of the magistrate. Such a register is open for inspection by the persons prescribed therein and the right to inspect includes the right to a copy of the register. Section 35A(1) and (4). They include any party to the proceedings in question or his legal representatives. Further, two classes of person may inspect with permission, namely, any person or his legal representative who satisfies the Registrar of the High Court or the magistrates’ clerk that such inspection is reasonably required in connection with actual or potential civil or criminal proceedings by or against that person; and any person who satisfies the Registrar of the High Court or the magistrates’ clerk that there is good reason for that inspection. Section 35A(1)(h) and (i)[2].

  38. The overwhelming majority of magisterial appeals are brought under “the alternative procedure” in s. 113 of the Magistrates Ordinance rather than the case stated procedure in s. 105. For both types of appeal, s. 119(1)(f) provides:

    the Registrar [of the High Court] shall send to the magistrates’ clerk, for entry in his record, a memorandum of the judge’s decision, and shall endorse a like memorandum on the conviction, and whenever any copy or certificate of the conviction is made, a copy of the memorandum shall be added thereto and shall be sufficient evidence of the judge’s decision in every case where the copy or certificate would be sufficient evidence of the conviction.

  39. Under this provision, the Registrar of the High Court (“the Registrar”), of which the CFI is part, is under a duty to perform two acts in relation to the decision of a judge on a magisterial appeal : (1) He must send to the magistrates’ clerk for entry in his record, that is, the clerk’s record, a memorandum of the judge’s decision; and (2) He must endorse a like memorandum on the conviction. The conviction referred to is the statutory form of conviction which must be drawn up for an appeal. Section 28(1) and 28(3). The acts which the Registrar is required to perform may be done simultaneously or sequentially at different times.

  40. On receipt of the Registrar’s memorandum, the effect of s. 119(1)(f), together with s. 35(1), is to impose a duty on the magistrates’ clerk to enter the judge’s decision, as stated in that memorandum, in the register he is required to keep. The magistrates’ clerk’s record referred to in s. 119(1)(f), in which he must enter the judge’s decision, is the register he must maintain under s. 35(1). Any person inspecting the register would then have the complete picture, that is, both the conviction and the judge’s decision on appeal.

  41. The ultimate question is what should be regarded as constituting the final record of the judge’s decision on a magisterial appeal. The matter turns on the proper interpretation of s. 119(1)(f) together with s. 35(1)[3]. Considering these provisions, it is the entry by the magistrates’ clerk in the register kept under s. 35(1) which should be regarded as constituting the final record of the judge’s decision.

  42. Neither of the acts required of the Registrar amounts to the making of the final record of the judge’s decision. The Registrar’s memorandum to the magistrates’ clerk is a communication and cannot be described as a record. Whilst the endorsement by the Registrar of the memorandum on the form of conviction may be regarded as the making of a record, s. 119(1)(f) plainly does not envisage that to be the final record, since the section provides for entry by the magistrates’ clerk in his record of the Registrar’s memorandum to him. The acts required to be performed by the Registrar are only part of the process leading to the making of the final record by the magistrates’ clerk in his record, that is the register he must keep under s. 35(1). That the final record of the judge’s decision on a magisterial appeal is made by the clerk in the trial court is entirely consistent with the statutory scheme in Part VII of the Magistrates Ordinance governing magisterial appeals.

  43. Under the scheme, an appeal against a conviction by a magistrate is instituted by the giving notice of appeal to the magistrates’ clerk or by applying to the magistrate to state a case. Sections 105 and 114. Further, abandonment of an appeal is by notice in writing to the clerk of the magistrate concerned. Section 117(1). Just as an appeal to a judge of the CFI against a magistrate’s decision is commenced in the Magistrates’ Courts by the requisite notice or application lodged in that court, so the final record of the judge’s decision on the appeal is made in the Magistrates’ Courts.

  44. As the entry by the magistrates’ clerk in the register of the Magistrates’ Courts kept under s. 35(1) constitutes the final record of the judge’s decision, that decision is only perfected when that entry is made. In accordance with the perfection rule, the judge has the power to change his decision up to that time.

    APPLICATION TO PRESENT CASE

  45. In the present case, the Judge’s clerk had endorsed the memorandum of the Judge’s decision on the form of conviction on 28 September 2007, the date of the oral decision. But the Judge’s clerk only sent the memorandum of the Judge’s decision to the magistrates’ clerk for entry on his record on 15 May 2008 after the 2nd written judgment was handed down when all the appeal papers were also sent back. Waiting for the reasons to be handed down before sending this memorandum was an appropriate course. In dealing with these matters, the Judge’s clerk was acting on behalf of the Registrar.

  46. The register which must be kept under s. 35(1) in the Magistrates’ Courts is computerized. (It is part of the Magistrates’ Courts’ computerized case management system.) After receipt on 16 May 2008 of the Judge’s clerk’s memorandum dated 15 May 2008, the magistrates’ clerk entered the result of the appeal in the computerized register on 19 May 2008. This was within a reasonable time of receipt of the memorandum. After such entry, the computerized register kept by the Magistrates’ Courts under s. 35(1) may be accessed by those entitled to inspect under s. 35A by obtaining a copy of the relevant entry. This would show both the conviction and that it had been quashed on appeal.

  47. As concluded above, the Judge’s decision was only perfected when it was finally recorded by entry in the record, that is, the computerized register of the Magistrates’ Courts. This was done on 19 May 2008. Until then, the Judge had the power to change his earlier oral decision.

  48. In his oral decision on 28 September 2007, the Judge had allowed the appeal and quashed the conviction. In his 1st written judgment handed down in the morning of 15 May 2008, he did not purport to change his oral decision but was purporting to give reasons for having dismissed the appeal which had never occurred. In these circumstances, the 1st written judgment was of no legal validity. In any event, the 2nd written judgment was substituted for it. The 2nd written judgment should be taken as giving the reasons for the oral decision.

  49. Mr Zervos SC for the prosecution submitted that injustice had been occasioned to the prosecution as it did not have the opportunity of advancing arguments on the ground given in the 2nd written judgment for allowing the appeal, that is, that the Magistrate should not have relied on Mr Tin’s evidence of what the supplier had told him.

  50. But this ground had been covered in the Company’s grounds of appeal and its written submissions before the Judge and the prosecution had lodged written submissions in response. Further, this ground was the subject matter of exchange between counsel for the Company and the Judge. Although it is true that the exchanges between counsel for the prosecution and the Judge focused on the ground that the Magistrate had unfairly descended into the arena, in the circumstances, no injustice was occasioned to the prosecution.

  51. The certified questions in the present case should be answered by reference to the facts. What is set out above provides the answers.

    RESULT

  52. Accordingly, the appeal by the prosecution is dismissed.

    RESIDUAL DISCRETION AFTER PERFECTION

  53. It is unnecessary in the present case to examine the question of the nature and scope of the residual discretion of an appellate criminal court, such as the CFI on a magisterial appeal, to alter a decision even after its perfection. In R v Daniel [1977] 1 QB 364 at 369F-370B, the Court of Appeal held that apart from nullity[4], an order may be re-opened where because of a failure to follow the rules or the well-established practice, there was a likelihood that injustice may have been done (at 369H-370B). See also R v Grantham [1969] 2 QB 574 and R v Cadman-Smith [2000] EWCA Crim 75.

  54. The approach in Daniel has been applied by the Court of Appeal in Hong Kong. See R v Wong Tak Sing [1990] 1 HKC 155 and Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498. See also HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405 which held that the District Court at first instance did not have the power to re-open after perfection on the ground of procedural error or mistake causing a likelihood of injustice but stated that other considerations might apply to an appeal.

  55. In Taylor v Lawrence [2003] QB 528, a five member Court of Appeal, with Lord Woolf presiding, held in a civil appeal that that Court had implicit powers to do what was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice (at paras 26 and 50). It concluded (at para 55) that it could take the exceptional course of reopening proceedings it had already heard and determined.

    What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.

    The approach in Taylor v Lawrence was adopted by the Court of Appeal in New Zealand for criminal appeals in R v Smith [2003] 3 NZLR 617.

  56. Whilst the question of the residual discretion does not arise for consideration in the present case, the approach in Taylor v Lawrence merits serious consideration for adoption in Hong Kong for an intermediate court of appeal dealing with civil or criminal cases as the appropriate solution for reconciling the tension between the two principal objectives referred to above of such a court. However, it is plain that the residual discretion is a wholly exceptional jurisdiction and the occasions when it may properly be invoked would be extremely rare.

  57. Finally, the Court must record its indebtedness to Mr Zervos SC, who with Mr David Leung, represented the prosecution for their fair and helpful submissions. Mr Zervos SC had stated that the prosecution’s objective in pursuing the appeal is to clarify the law rather than to seek to restore the conviction. The Court must also record its indebtedness to Mr Godfrey Lam SC, who appeared as Amicus Curiae, for his most able submissions.


[1] The case proceeded to the Privy Council which dismissed the appeal [1967] 2 AC 160 but it did not deal with the question whether the Full Court had the jurisdiction to re-open the matter after its oral decision.

[2] Any person aggrieved by a magistrates’ clerk’s refusal of permission may appeal to a magistrate whose decision is final. Section 35A(2). A decision by the Registrar to refuse permission to inspect is also final. Section 35A(3).

[3] This question did not arise for consideration in Lau Kwok Wah and Yeh Tsann Tarng, the two CFI decisions on a magisterial appeal since in both cases, none of the steps contemplated by s. 119(1)(f) had been taken.

[4] The Court noted (at 369G) that this had occurred in R v Majewski [1977] AC 443, where the Court of Appeal had acted without jurisdiction (at 450H-451D).


Cases

Burrell v R [2008] HCA 34, 82 ALJR 1221

DJL v The Central Authority (2000) 201 CLR 226

Elliott v R (2007) 239 ALR 651

HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405

HKSAR v Ho Tung Man [1997] 3 HKC 375

HKSAR v Agbayani (19 March 2008) CACC 114/2007

HKSAR v Yeh Tsann Tarng (1 February 1999) HCMA 1005/1998

R v Au Pui Kuen (3 February 1977) CACC 1028/1976

R v Cadman-Smith [2000] EWCA Crim 75

R v Chan Wai Keung [1965] HKLR 815

R v Cross [1973] 1 QB 937

R v Daniel [1977] 1 QB 364

R v Grantham [1969] 2 QB 574

R v Lau Kwok Wah [1980] HKLR 24

R v Man Lim Ping [1985] 1 HKC 61

R v Nakhla (No. 2) [1974] 1 NZLR 453

R v Saville [1981] 1 QB 12

R v Smith [2003] 3 NZLR 617

R v Wong Tak Sing [1990] 1 HKC 155

R v Wong Siu Chung (7 June 1995) CACC 571/1994

Registrar, Court of Appeal v Craven [No. 2] (1995) 120 FLR 464 (Court of Appeal of New South Wales)

Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476

Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498

Taylor v Lawrence [2003] QB 528

Legislations

Magistrates Ordinance: s,28, s.35, s.35A, s.105, s.113, s.119

Representations

Kevin P. Zervos SC and David Leung (of the Department of Justice) for the appellant.

Mr Godfrey Lam SC, amicus curiae.

The respondent did not appear and was not represented


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